Several political leaders have not hesitated to qualify the violence against civilians in Ukraine as “genocide”, but beyond the facts which remain to be established, the argument at this stage is more a matter of political rhetoric than legal facts. established.
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US President Joe Biden brought the debate back to the public square on Tuesday. If it is up to “lawyers, at the international level”, to decide on the qualification of genocide, “for me, it looks like it”, he declared.
Before him in particular, British Prime Minister Boris Johnson had mentioned it, as had Ukrainian President Volodymyr Zelensky. The Russian president himself has used the term repeatedly to denounce kyiv’s policy in Donbass, a region of Ukraine that has been plagued since 2014 by a war between the Ukrainian army and pro-Russian separatists.
“I have to talk about Russophobia as a first step towards genocide. This is what is happening right now in the Donbass,” he said in December.
The United Nations Convention on the Prevention and Punishment of the Crime of Genocide, dating from 1948, describes it as a “crime committed with intent to destroy, or all or part of, a national, ethnical, racial or religious group “.
Recently, the term has been mentioned in particular for the fate reserved by Beijing for the Muslim minority of the Uyghurs or the violence committed by the Burmese junta against that of the Rohingyas.
But each file deserves its own analysis. Cecily Rose, professor of international public law at the University of Leiden, in the Netherlands, believes that there is “a lot of evidence” supporting the hypothesis of genocides against the Uyghurs and the Rohingyas.
“Fog of War”
On the other hand, “I don’t think that what is happening in Ukraine falls under the definition of genocide,” she added to AFP.
The International Criminal Court (ICC) has already opened an investigation into the events in Ukraine. “Ukraine is a scene of crime (…). We must pierce the fog of war to get to the truth,” his prosecutor, Briton Karim Khan, said on Wednesday in Boutcha, near kyiv.
But lawyers are more cautious than politicians.
“The word genocide has a precise legal definition, but it is also widely used by politicians and activists because of its ability to inflame and excite” public opinion, explains to AFP William Schabas, professor of international law at the Middlesex University of London.
“It’s a superlative, a term you use when other labels like ‘war crimes’ and ‘crimes against humanity’ don’t seem to be rhetorically effective enough,” he says, qualifying the About Joe Biden from ‘Horsemen’.
Because de facto, the fundamental issue goes far beyond international oratorical contests.
The qualifications of war crimes, crimes against humanity, genocide respond to specific facts which, like any legal matter, must go beyond the emotional to come under an established and demonstrated truth.
“Careful and cautious”
“We have a conflict that amazes us all. Barely begun, international criminal justice is set in motion”, notes Céline Bardet, lawyer and international criminal investigator, “shocked” that the ICC prosecutor goes to kyiv and meets with President Zelensky.
“That he decides to open an investigation so quickly, so much the better, I expect him to do the same from now on for all conflicts,” she adds.
And the jurist to call for a distanced justice, protected from the emotion caused by the accumulation of civilian victims in Ukraine.
“Justice needs distance so as not to fall into all this hubbub. The time for justice is not the time for conflict”, she insists, fearing that the ICC will reinforce its image of a jurisdiction which “works when Westerners push it to do so”.
Cecily Rose for her part defends the need to act quickly. “It’s better to collect the evidence now than in five years,” she said.
“We can certainly take this opportunity to discuss how selective international justice has been,” she admits. “But we cannot say that nothing should be done in Ukraine”.
And while waiting for justice to establish the facts, the word “genocide” should “be used with great care and caution, preferably on the basis of an independent investigation”, insists the expert.